Tuesday, 23 October 2007

CJ Tun Fairuz, Leave NOW for the Sake of the Nation !

" There comes a time when a man (or woman), especially someone holding the highest judicial office in the land, should take upon himself to preserve his own self-esteem and pride. Especially so when the country is questioning his relevance in holding public office caused by swirling controversies around him. It means simply, he should voluntarily and gracefully leave the public stage.

Under his watch, it is fair to say, the Judiciary has not been serving the country in the way it should be in a proper democracy. The general loss of faith by Malaysians in our judiciary is palpable. In fact, the judicial rot remains unabated to this day.

The latest so-called "Lingam Tape Scandal" only makes Tun Fairuz holding the position as the nation's Chief Justice all the more untenable.

All said, the nation has lost total confidence in Tun Fairuz as the Chief Justice.

Tun Fairuz's time has run its full course. The citizens and the legal fraternity have made it clear they do not need him in public office any more, not another day, not another week, and certainly not another six months.

Tun Fairuz should retire gracefully as scheduled so that the nation can slowly heal itself from the scandals in recent months and from the tumultuous decades of the past when the Executive took the unprecedented step to severely curtail the independence of the Judiciary.

We say, for the sake of the nation, and for Tun Fairuz's own personal integrity, and that of his family, that he should leave now, without seeking the six month extension of his duties."

".. It would upset and disappoint Malaysians terribly if the tenure of the current Chief Justice, Tun Ahmad Fairuz Sheikh Abdul Halim, were to be extended. It would seriously undermine the confidence of the people in the judiciary to a point of no return.

The judiciary is already in a shambles and there is no need to degrade it further by extending the tenure of the Chief Justice of the Federal Court.

On behalf of all Malaysians, Aliran would like to politely and humbly appeal to His Majesty, the Yang diPertuan Agong, to reject Ahmad Fairuz’s application to His Majesty for a six-month extension of tenure.

Article 125(1) states:

' Subject to the provisions of Clauses (2) to (5), a judge of the Federal Court shall hold office until he attains the age of sixty-six years or such later time, not being later than six months after he attains that age, as the Yang di-Pertuan Agong may approve.'

In this extension of tenure of office, the Prime Minister does not seem to have any role to play. It would appear that His Majesty, the Yang di-Pertuan Agong, solely decides on this matter.

It is the absolute discretion of His Majesty, the Yang di-Pertuan Agong.

By now it is very clear that it is the collective view of all thinking Malaysians that Ahmad Fairuz does not deserve to be in office even a minute longer. He must go - and go in the soonest time frame that is possible.

After the disgraceful Lingam tape, it is only morally correct that he should not be around to denigrate an institution that is the custodian of justice.

It is as simple as that.

Ahmad Fairuz has not openly and publicly denied that he is the person on the other end of the telephone conversation.

He has not said any thing to dispel all the rumours that link him to various episodes in the promotion and elevation of judges. Neither is he spared from the negative and speculative judgments that he has been associated with.

How could such a person who has miserably failed to put the record straight be considered for an extension of tenure of office?

We are not persuaded by Datuk Seri Nazri’s claim, according to the NST of today, that “the Yang di-Pertuan Agong has to act on the advice of the prime minister on extending the tenure of the chief justice”, who is due to retire at the end of the month. He further reiterates that:

“..the king as a constitutional monarch was bound by the prime minister’s advice in the appointment and promotion of judicial officers. This includes whether to extend by six months the tenure of the chief justice after he attains the compulsory retirement age of 66”.

Nazri seems to conveniently forget that in the appointment and promotion of judicial officers, His Majesty is required to act “after consulting the Conference of Rulers”. “After consulting the Conference of Rulers” does not seem to suggest that it is purely an academic exercise.

It is more than that.

There has to be deliberation to arrive at a collective decision – no matter what Nazri may insist. There are others in the legal circle who do not share Nazri’s interpretation of the Federal Constitution.

Under the Federal Constitution, when it comes to “tendering his advice as to the appointment of a judge”, the Prime Minister does not simply pluck out a name for consideration out of thin air.

He “shall consult” the respective heads of the Federal Court, the Court of Appeal and the High Court before submitting the names to His Majesty, the Yang di-Pertuan Agong. Just as in this case, “shall consult” does not mean a meaningless chat with the respective heads but refers to a constructive discussion and recommendation; this same process applies when His Majesty consults the Conference of Rulers.

Aliran would like to advise Nazri not to confuse the public with his one-sided interpretation of the Federal Constitution.

Withdraw application for six-month extension and give full support for a Royal Commission of Inquiry into Lingam Tape and to restore public confidence in the judiciary

I am taking this unprecedented step of issuing this Open Letter to ask you to act in the national interest and to restore public confidence in the judiciary by withdrawing your application for six-month extension on your due retirement at the end of the month and to give full support for a Royal Commission of Inquiry into the Lingam Tape.

Such an action on your part will avert a new constitutional crisis over your controversial application for a six-month extension as well as a new crisis of confidence in the judiciary.

Former Lord President Sultan Azlan Shah in his postscript to his book “Constitutional Monarchy, Rule of Law and Good Governance” (pp 399 – 401) in April 2004 had written:

“Sadly, over the past few years there has been some disquiet about the judiciary. Several articles have been written, and many opinions expressed, both internationally and locally, that the independence of our judiciary has been compromised. It has been said that there has been an erosion of public confidence in our judiciary.

Concerns have been expressed that some judges were not writing judgments, or that there were long delays in obtaining decisions or hearing dates in certain instances. Further, the conduct of certain judges was being questioned in public…

Whether these allegations are true, is not for me to say. However, having been a member of the judiciary for many years, it grieves me when I hear of such allegations. Since Independence, the early judges have always cherished the notion of an independent judiciary and had built the judiciary as a strong and independent organ of government. The public had full confidence of the judiciary and accepted any decision then made without any question. Unfortunately, the same does not appear to be the case in recent years.

Whatever the situation, a judiciary may only be said to be independent if it commands the confidence of the public – the very public it seeks to serve. After all, statements made as to its independence by the judges, or even the politicians, do not measure public confidence in the judiciary. At the end of the day, it is this public perception that ultimately matters.

It is my earnest hope that the Malaysian judiciary will regain the public’s confidence, and that it will once again be held in the same esteem as it once was held. In democratic countries, it is an independent judiciary that brings pride to the nation. Members of the executive and the legislature come and go, but an independent judiciary must remain steadfast forever, fulfilling the aspirations and ideals of the people. In the judiciary, people place their trust and hope.”

Sultan Azlan Shah’s critique of the parlous state of the judiciary is even more pertinent today than when he wrote it in April 2004, with the entire period falling your term as Chief Justice – a powerful reason why Tun should avert a constitutional crisis and a new crisis of confidence over the judiciary over the controversial application for a six-month extension.

Yesterday, the Bar Council website carried the following comparative data on the number of reported judgments written by the current Chief Justice, and his three predecessors, Tun Salleh Abas, Raja Azlan Shah (as HRH then was) and Tun Mohamed Suffian when they sat at the High Court, Court of Appeal and the apex court.

Without having to go into these comparative figures which reflects adversely on Tun, or the latest crisis of confidence ensuing from the Lingam tape scandal, the words of Sultan Azlan Shah reminding all that public confidence in the judiciary in the past 55 months when Tun had been Chief Justice had not only failed to improve so that “it will once again be held in the same esteem as it once was held” but had significantly taken a turn for the worse should be sufficient ground for Tun to save the country from another bout of a twin crisis of the constitution and public confidence in the judiciary."

4,008 concerned citizens have signed a petition asking for the setting up of a Royal Commission to inquire into and investigate the veracity of what is depicted in the Lingam tape and, if confirmed to be true, to set into motion the necessary steps to remove Fairuz and to clean up the judiciary.

In these circumstances, in my view, Fairuz should properly have taken a leave of absence or have been suspended pending such an inquiry.

Instead, we are confronted with the audacious prospect of an extension of his term!The Conference of Rulers meets next week.

The matter of the extension or otherwise of Fairuz’s term is almost certain to be on the agenda before their Royal Highnesses.

It is, in my view, important that the concerns of those who have bravely signed the petition be made known to the Conference of Rulers..."

"... 'for the sake of the country', for when a person is no longer useful and threatens to become a liability, the likelihood of him or her being dumped like a hot potato or thrown to the dogs increases significantly.

... and judges are not supposed to be embroiled in politics.

Maybe Ahmad Fairuz should consider stepping back from being embroiled even in judicial matters.

The authenticity of the video clip no longer matters, as far Ahmad Fairuz’s tenure as Chief Justice is concerned.

Rightly or wrongly, he has been tainted by it, and therefore his position as Chief Justice has become untenable.

The right, honourable, and just thing to do would be to see out his tenure and retire into private life.

Ahmad Fairuz should withdraw his application, forget this business of an extension, and be reminded that justice must not only be done, but must be seen to be done..."